State of New SouthWales v. Mulcahy (No.2)

THE COURT: On 3 November 2006, the Court gave its reasons why it proposed that the ordinary summons for leave to appeal should be dismissed, with costs to be plaintiff's costs in the action: [2006] NSWCA 303.

As foreshadowed in those reasons, Bryson JA has presided over the settlement of draft pleadings so as to minimise the possibility of further disputes. On 10 November 2006, Bryson JA, by his signature on them, identified a Further Amended Statement of Claim (iv), a Further Amended Defence to Further Amended Statement of Claim, a Reply and an Amended Rejoinder, as having been settled in accordance with this process.

However, it has been submitted by the State of New South Wales that the Court of Appeal has no power to exercise the powers of the District Court pursuant to Pt.2.1 of the Uniform Civil Procedure Rules. Also, both parties submit that any order the Court of Appeal makes about amendments should not shut out the possibility of further amendments being made by the District Court.

In our view, as part of the disposal of an application for leave to appeal brought because of problems arising from the way the case was pleaded from time to time, the Court of Appeal can make orders with a view to resolving problems concerning pleadings, so far as they are apparent to the Court at that time. In a case such as this, where the result is in substance to leave the first instance decision standing, it may be appropriate to dismiss the application for leave, having made orders to ensure that the real issues between the parties are reflected in the pleadings.

Accordingly, the Court orders as follows: 1. Pleadings amended in accordance with the four documents identified by Bryson JA's signature and dated 10 November 2006, this order not to affect the power of the District Court to allow further amendments. 2. Application for leave to appeal dismissed. 3. Costs of the application for leave to be plaintiff's costs in the proceedings.